The Prop 8 challenge decision: less than meets the eye, but promising more to come

by on May 30, 2009  •  In Constitutional law, Marriage, States

Despite all the heartburn it has engendered, my bet is that Strauss v. Horton (2009 WL 14444594), the decision upholding Prop 8, will not have much lasting effect, at least directly, on lgbt rights law.

Fundamentally, the case was about the criteria necessary before a change to the California constitution could be considered a revision rather than an amendment. The most important issue it raised was how to classify an amendment depriving a minority of a deeply important symbolic, although only symbolic, badge of inferiority. The California Supreme Court was not the first to find that a marriage inequality amendment should be considered an amendment rather than a revision: as the opinion noted, appeals courts in Oregon and Alaska reached exactly the same result upholding exactly the same distinction in those state constitutions.  But the California court was not bound by the other rulings. It could have engaged the much more difficult – and interesting – question of what equality means when a separate status is materially equal, but nonetheless functions as inescapable social stigmata. Denying the "m" word may seem trivial, but its effects can metastasize throughout the daily lives of gay Californians who would choose to marry, eating away at their human dignity.

The court could have gone there, but it didn't, and instead provided a mechanical, low-key rationale for why this one change didn't fundamentally alter the constitutional structure of state government. The continuing recognition of sexual orientation as a suspect classification for state law purposes merely illustrates that marriage is the only zone of de jure distinctions in state law that anyone bothers to fight about much any more, at least in progressive states like California.

The decision does leave Connecticut as the only state where the highest court has ruled that an already existing civil union system is not constitutionally sufficient, and that the term "marriage" must be open to same-sex couples in order for equality to be achieved. However, legislatures in the Northeast are moving on their own. Vermont essentially came to the same conclusion legislatively, and New Jersey seems poised to follow the Vermont sequence (lose marriage case in court –> adopt civil unions –> win marriage in legislature) later this year. New Hampshire, perhaps joined by New York, may adopt the Massachusetts/Iowa/Maine model of skipping civil unions entirely and going directly from no state recognition of same-sex couples to marriage.

I suppose that one silver lining of the Prop 8/Strauss outcome is that it should silence those who argue that the lgbt community has achieved so much political power that it no longer needs heightened constitutional protection. California has become the 30th state in which the constitution explicitly singles out gay people for exclusion from a fundamental right. That's stunning and certainly unique. It's both a political mountain that will have to be climbed and evidence of a degree of opprobrium and assumption of moral superiority that's pretty breathtaking.

Indeed, framed that way, the success of the anti-gay state constitutional amendment strategy creates a pretty damn good argument for federal constitutional recognition of sexual orientation as a suspect class. Which brings up the last indirect and ironic byproduct of the Prop 8 decision – the wacky world of David Boies' and Ted Olson's arrogant new adventure in litigation.  More on that in a later post.


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